Updated HSE sentencing guidelines: two years on

In 2016 the updated sentencing guidelines for health and safety and corporate manslaughter offences came into force across the UK.

Over two years on, what effects have these new guidelines had on the construction landscape?

The new guidelines came after a consultation in 2015 which saw input from representatives from various associations including the Health and Safety Lawyers Association and UK magistrates courts.

Previous to these new guidelines, there were definitive guidelines for corporate manslaughter, but this guidance was quite limited for other, related, offenses. Notably, the new guidelines provide judges with starting points for suitable fines based on company turnover.

The new guidelines have already had an impact on several cases where companies were found to be in breach of the Health and Safety at Work Act 1974. Larger companies are now routinely being sentenced according to their size, and there has been an increase in total fines.

The guidelines are broken down into nine categories, each to be considered by the sentencing Court in turn.

  • The court must first consider the level of culpability, where the range is from ‘very high’, which involves a deliberate breach or flagrant disregard for the law, to a ‘low’ level of culpability when significant efforts were made to address the risk, even if these attempts were inadequate, and there was no warning of the risk and the failings were minor and an isolated incident.
  • The next stage to be considered is the seriousness of harm ‘risked’ and the likelihood of that harm occurring. Health and Safety is based on ‘risk’ and the overarching duty for each dutyholder is to ensure, as far as is reasonably practicable, the health, safety and welfare of employees and non-employees. There is no requirement for a failure to comply with this duty to result in actual harm but is the potential for the risk of harm which arises from the alleged breach of duty. When the guidelines consider the level of harm, they are concerned with the seriousness of harm ‘risked’ and if actual harm has been caused.
  • Thirdly, after considering the seriousness of harm risked – almost always ‘death’ or serious physical impairment – the court will then consider the likelihood of that harm occurring, which assists in identifying the most appropriate harm category. The category can be adjusted if the alleged breach resulted in actual harm, for example, someone was actually injured and/or a wide group of the public or employees were put at risk.

Once the court has established the level of culpability and harm caused, they will then consider the means or turnover of the defendant to identify an appropriate punishment.

For ‘very large’ companies, i.e. those with a turnover of over £50m, the new guidelines offer an ‘anything goes’ approach.

Many thought the punishment of Merlin Attactions Ltd, after an accident on their ‘Smiler’ rollercoaster at Alton Towers park in 2015 led to several serious injuries, including the amputation of one rider’s leg, would be the first case of a ‘very large’ company being sentenced under these new guidelines.

Instead, this case resulted in a relatively small fine of £5m, with the judge presiding over the case choosing to sentence Merlin Attractions Ltd as one would a ‘large’ company. Many in the industry thought this was a missed opportunity to set a precedent for the punishment of ‘very large’ companies, and we are yet to see a ‘very large’ company punished under this new definition.

In fact, there have been several cases of ‘very large’ companies receiving reduced punishment due to mitigation based on the other considerations laid out in the guidelines.

Travis Perkins, a company with an estimated annual turnover of almost £2.2bn, was found to have breached Health and Safety guidelines after a customer loading planks of wood into his car was run over by a company vehicle and killed. Using the new guidelines, it was decided the company had ‘medium culpability’, and that there was a high likelihood of harm prior to the incident. The final fine was £2m.

These rulings show that decisions on culpability and harm, made under the new guidelines, have a big impact on the final fine. For a large company with a very high culpability and harm category 1 (the highest), the sentencing range available to the court is £2.6m-£10m. If that is reduced to medium culpability and harm category 1, the range of fine available to the judge is reduced to £800,000- £3.25m and on the rare occasions that the breach is deemed low culpability / harm category 1, the range of fine available is £180,000-£700,000.

This highlights the importance of taking the necessary steps and putting reasonably practicable precautions in place. You cannot always prevent incidents occurring, especially in an industry as unpredictable as construction, but should the worst happen you can mitigate the punishment and keep your culpability level low by showing you met your responsibilities.

An effective way to do this is to invest in the right training for your employees, as well as the right equipment and regular recertification of that equipment, as well as your health and safety policies. Safesite offers all of this as part of our complete solution.

Remember: even the highest fine or even custodial sentence pales in comparison to the personal cost of a life ruined or lost due to negligence or miscommunication.

For more information on how we might be able to help, call Safesite on 01293 529977 or use our online contact form.

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